Corpus Juris Civilis

This article is about the Roman law codification of Justinian I. For the canon law codification of a similar name, see Corpus Juris Canonici.

Justinian I depicted on a mosaic in the church of San Vitale, Ravenna, Italy

The Corpus Juris (or Iuris) Civilis ("Body of Civil Law") is the modern name[1] for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor. It is also sometimes referred to as the Code of Justinian, although this name belongs more properly to the part titled Codex Justinianus.

The work as planned had three parts: the Code (Codex) is a compilation, by selection and extraction, of imperial enactments to date; the Digest or Pandects (the Latin title contains both Digesta and Pandectae) is an encyclopedia composed of mostly brief extracts from the writings of Roman jurists; and the Institutes (Institutiones) is a student textbook, mainly introducing the Code, although it has important conceptual elements that are less developed in the Code or the Digest. All three parts, even the textbook, were given force of law. They were intended to be, together, the sole source of law; reference to any other source, including the original texts from which the Code and the Digest had been taken, was forbidden. Nonetheless, Justinian found himself having to enact further laws and today these are counted as a fourth part of the Corpus, the Novellae Constitutiones (Novels, literally New Laws).

The work was directed by Tribonian, an official in Justinian's court. His team was authorized to edit what they included. How far they made amendments is not recorded and, in the main, cannot be known because most of the originals have not survived. The text was composed and distributed almost entirely in Latin, which was still the official language of the government of the Empire in 529–534, whereas the prevalent language of merchants, farmers, seamen, and other citizens was Greek. By the early 7th century, the official government language had become Greek during the lengthy reign of Heraclius (610–641).

How far the Corpus Iuris Civilis or any of its parts was effective, whether in the east or (with reconquest) in the west, is unknown. However, it was not in general use during the Early Middle Ages. After the Early Middle Ages, interest in it revived. It was "received" or imitated as private law and its public-law content was quarried for arguments by both secular and ecclesiastical authorities. This revived Roman law, in turn, became the foundation of law in all civil law jurisdictions. The provisions of the Corpus Juris Civilis also influenced the Canon Law of the church: it was said that ecclesia vivit lege romana — the church lives by Roman law.[2] Influence on the common-law systems has been much smaller, although some basic concepts from the Corpus have survived through Norman law - such as the contrast, especially in the Institutes, between "law and custom (lex et consuetudo)". The Corpus continues to have a major influence on public international law. Its four parts thus constitute the foundation documents of the Western legal tradition.

The four parts

Codex

Main article: Codex Justinianus

The "Codex" was the first part to be finished, on 7 April 529. It contained in Latin most of the existing imperial constitutiones (imperial pronouncements having force of law), back to the time of Hadrian. It used both the Codex Theodosianus and the fourth-century collections embodied in the Codex Gregorianus and Codex Hermogenianus, which provided the model for division into books that were themselves divided into titles. These works had developed authoritative standing.[3] This first edition is now lost; a second edition was issued in 534 and is the text that has survived. At least the second edition contained some of Justinian's own legislation, including some legislation in Greek. It is not known whether he intended there to be further editions, although he did envisage translation of Latin enactments into Greek.

Legislation about religion

Numerous provisions served to secure the status of Christianity as the state religion of the empire, uniting Church and state, and making anyone who was not connected to the Christian church a non-citizen.

Laws against heresy

The very first law in the Codex requires all persons under the jurisdiction of the Empire to hold the Christian faith. This was primarily aimed against heresies such as Nestorianism. This text later became the springboard for discussions of international law, especially the question of just what persons are under the jurisdiction of a given state or legal system.

Laws against paganism

Other laws, while not aimed at pagan belief as such, forbid particular pagan practices. For example, it is provided that all persons present at a pagan sacrifice may be indicted as if for murder.

Digesta

Main article: Digest (Roman law)

The Digesta or Pandectae, completed in 533, is a collection of juristic writings, mostly dating back to the second and third centuries. Fragments were taken out of various legal treatises and opinions and inserted in the Digest. In their original context, the statements of the law contained in these fragments were just private opinions of legal scholars - although some juristic writings had been privileged by Theodosius II's Law of Citations in 426. The Digest, however, was given complete force of law.

Institutiones

As the Digest neared completion, Tribonian and two professors, Theophilus and Dorotheus, made a student textbook, called the Institutions or Elements. As there were four elements, the manual consists of four books. The Institutiones are largely based on the Institutiones of Gaius. Two thirds of the Institutiones of Justinian consists of literal quotes from Gaius. The new Institutiones were used as a manual for jurists in training from 21 November 533 and were given the authority of law on 30 December 533 along with the Digest.

Novellae

The Novellae consisted of new laws that were passed after 534. They were later re-worked into the Syntagma, a practical lawyer's edition, by Athanasios of Emesa during the years 572–77.

Continuation in the East

The term Byzantine Empire is used today to refer to what remained of the Roman Empire in the Eastern Mediterranean following the collapse of the Empire in the West. This Eastern empire continued to practice Roman Law and formalized it via the Corpus Juris Civilis. The law was modified to be adequate for the new social relationships in the Middle ages. Thus the Byzantine law was created. New legal codes, based on Corpus Juris Civilis, were enacted. The most known are: Ecloga[4] (740)—enacted by emperor Leo the Isaurian, Proheiron[5] (c. 879)—enacted by emperor Basil the Macedonian and Basilika (late 9th century)—started by Basil the Macedonian and finished by his son Leo the Wise. The last one was a complete adaptation of Justinian's codification. At 60 volumes it proved to be difficult for judges and lawyers to use. There was need for a short and handy version. It was finally made by Constantine Harmenopoulos, a judge from Thesaloniki, in 1345. He made a short version of Basilika in six books, called Hexabiblos. Serbian state, law and culture was built on the foundations of Rome and Byzantium. Therefore, the most important Serbian legal codes: Zakonopravilo (1219) and Dušan's Code (1349 and 1354), transplanted Roman-Byzantine Law included in Corpus Juris Civilis, Prohiron and Basilika. These Serbian codes were practised until the Serbian Despotate fell to the Turkish Ottoman Empire in 1459. After the liberation from the Turks in the Serbian Revolution, Serbs continued to practise Roman Law by enacting Serbian civil code in 1844. It was a short version of Austrian civil code (called Allgemeines bürgerliches Gesetzbuch), which was made on the basis of Corpus Juris Civilis.

Recovery in the West

Corpus Iuris Civilis, 1583

Justinian's Corpus Juris Civilis was distributed in the West[6] but was lost sight of; it was scarcely needed in the comparatively primitive conditions that followed the loss of the Exarchate of Ravenna by the Byzantine empire in the 8th century. A two-volume edition of the Digest was published in Paris in 1549 and 1550, translated by Antonio Augustini, Bishop of Tarragona, who was well known for other legal works. The full title of the Digest was Digestorum Seu Pandectarum tomus alter, and it was published by "Apud Carolam Guillards". Vol. 1 of the Digest has 2934 pages, while Vol. 2 has 2754 pages. The only western province where the Justinianic code was effectively introduced was Italy, following its recovery by Byzantine armies (Pragmatic Sanction of 554), but a continuous tradition of Roman law in medieval Italy has not been proven.[7] Historians disagree on the precise way it was recovered in Northern Italy about 1070: legal studies were undertaken on behalf of papal authority central to the Gregorian Reform of Pope Gregory VII, which may have led to its accidental rediscovery. Aside from the Littera Florentina (a 6th-century codex of the Pandects that was preserved at Pisa) there may have been other manuscript sources for the text that began to be taught at Bologna, by Pepo and then by Irnerius.[8] Irnerius' technique was to read a passage aloud, which permitted his students to copy it, then to deliver an excursus explaining and illuminating Justinian's text, in the form of glosses. Irnerius' pupils, the so-called Four Doctors of Bologna, were among the first of the "glossators" who established the curriculum of medieval Roman law. The tradition was carried on by French lawyers, known as the Ultramontani, in the 13th century.

The merchant classes of Italian communes required law with a concept of equity, and law that covered situations inherent in urban life better than the primitive Germanic oral traditions. The provenance of the Code appealed to scholars who saw in the Holy Roman Empire a revival of venerable precedents from the classical heritage. The new class of lawyers staffed the bureaucracies that were beginning to be required by the princes of Europe. The University of Bologna, where Justinian's Code was first taught, remained the dominant centre for the study of law through the High Middle Ages.

Referring to Justinian's Code as Corpus Juris Civilis was only adopted in the 16th century, when it was printed in 1583 by Dionysius Gothofredus under this title. The legal thinking behind the Corpus Juris Civilis served as the backbone of the single largest legal reform of the modern age, the Napoleonic Code, which marked the abolition of feudalism.

The Corpus Juris Civilis was translated into French, German, Italian, and Spanish in the 19th century.[9] However, no English translation of the entire Corpus Juris Civilis existed until 1932 when Samuel Parsons Scott published his version The Civil Law. Unfortunately, Scott did not base his translation on the best available Latin versions, and his work was severely criticized.[10] Fortunately, Fred. H. Blume did use the best-regarded Latin editions for his translations of the Code and of the Novels.[11]

See also

References

  1. ↑ The name "Corpus Juris Civilis" occurs for the first time in 1583 as the title of a complete edition of the Justinianic code by Dionysius Godofredus. (Kunkel, W. An Introduction to Roman Legal and Constitutional History. Oxford 1966 (translated into English by J.M. Kelly), p. 157, n. 2)
  2. ↑ Cf. Lex Ripuaria, tit. 58, c. 1: "Episcopus archidiaconum jubeat, ut ei tabulas secundum legem romanam, qua ecclesia vivit, scribere faciat". ()
  3. ↑ George Long, in William Smith, ed., A Dictionary of Greek and Roman Antiquities, (London: Murray) 1875 (On-line text).
  4. ↑ http://www.britannica.com/EBchecked/topic/178179/Ecloga
  5. ↑ http://www.doiserbia.nb.rs/img/doi/0584-9888/2004/0584-98880441099S.pdf
  6. ↑ As the Littera Florentina, a copy recovered in Pisa, demonstrates.
  7. ↑ Kunkel, W. (translated by J.M. Kelly) An Introduction to Roman Legal and Constitutional History. Oxford, Clarendon Press, 1966; 168-69
  8. ↑ For a detailed account of how the relevant manuscripts and their transmission, see Charles M. Radding & Antonio Ciaralli, "The Corpus Juris Civilis in the MIddle Ages: Manuscripts and Transmission from the Sixth Century to the Juristic Revival" (Brill, Leiden, 2007).
  9. ↑ Hulot, H. et al., Corpus iuris civilis. Le Digeste, les Institutes, le Code, les Nouvelles 14 vols (1803-11); Otto, C.E., Schilling, B., Sintenis, C.F.F., Das Corpus Iuris Civilis in's Deutsche übersetzt... 7 vols. (1831-39); Vignali, G., Corpo del diritto, corredato delle note di D. Gotofredo... 10 vols. (1856-62); Rodriguez de Fonseca, B. et al., Cuerpo del derecho civil... 2 vols. (1874)
  10. ↑ See Timothy Kearley, Justice Fred Blume and the Translation of the Justinian Code (2nd ed. 2008) 3, 21.
  11. ↑ Id. at 3. For further discussion of the work of Scott, Blume, and Clyde Pharr on Roman law translation see Kearley, Timothy G., "From Rome to the Restatement: S.P. Scott, Fred Blume, Clyde Pharr, and Roman Law in Early Twentieth-Century," available at Social Science Research Network .

External links

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Latin texts

Corpus Iuris Civilis complete

Institutiones, Codex and Digesta

English translations

Corpus Iuris Civilis complete

Codex

Codex and Novellae

Selections

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